David
C. Weiss, Acting United States Attorney, Office of the United
States Attorney, Wilmington, Delaware and Heather Benderson,
Special Assistant United States Attorney, Office of the
General Counsel, of the Social Security Administration,
Philadelphia, Pennsylvania.

Plaintiff
Eugene L. Maloney ("Maloney" or
"Plaintiff'), who proceeds pro sc
and has been granted leave to proceed in forma
pauperis, appeals from the decision of Defendant Nancy
A. BerryhilL Acting Commissioner of Social Security
("Commissioner" or "Defendant"), denying
his application for disability insurance benefits
("DIB") and supplemental security income benefits
("SSI") under Tides II and XVI of the Social
Security Act, 42 U.S.C. §§ 401-434, 1381-1383f. The
Court has jurisdiction pursuant to 42 U.S.C. § 405(g)
and 1383(c)(3).[1] Presently pending before the Court
are cross-morions for summary judgment filed by Maloney and
the Commissioner.[2](D.L 15, 18) For the reasons set
forth below, the Court will deny Plaintiffs motion for
summary judgment and will grant Defendant's morion for
summary judgment.

II.
BACKGROUND

A.
Procedural History

Maloney
filed his application for DIB on January 22, 2013, and for
SSI on February 1, 2013, alleging disability as of December
15, 2010, due to bursitis, basil cell carcinoma skin cancer,
and neck, shoulder, and wrist impairments. (D.I. 9-5 at 2-12;
D.I. 9-6 at 14) The application was denied on March 6, 2013,
and upon reconsideration on July 16, 2013. (D.L 9-3 at 22-23,
46-47) Maloney filed a request for a hearing on August 15,
2013. (D.I. 9-4 at 20-21) A hearing was held before an
Administrative Law Judge ("ALJ") on December 8,
2014. (D.L 9-2 at 36-62) The ALJ issued a decision finding
that Maloney was not disabled under the Act. (Id. at
17-35) Maloney filed a request for review by the Appeals
Council and submitted additional evidence that was
considered. (D.I. 9-3 at 3, 5; D.I. 9-11 at 1-66; D.I. 9-12
at 1-28) After considering whether the ALJ's action,
findings, or conclusion was contrary to the weight of the
evidence of record, the Appeals Council found no basis for
changing the ALJ's decision and denied Maloney's
request for review on August 27, 2015, making the ALJ's
decision the final decision of the Commissioner. (D.I. 9-2 at
2-16)

On
October 28, 2015, Maloney filed a Complaint seeking judicial
review of the ALJ's decision. (D.I. 2) Maloney moved for
summary judgment on February 3, 2017, and the Commissioner
filed a cross-motion for summary judgment on March 7, 2017.
(D.I. 15, 18)

B.
Medical Evidence

Right
Wrist.

On June
23, 2009, Maloney was seen by Dr. Helen Ting ("Dr.
Ting") with complaints of right wrist pain. (D.I. 9-7 at
55) Maloney explained that eight to nine months earlier, when
he was using clippers while pruning, he heard a crack and has
had right wrist tenderness ever since. (Id.) Maloney
was prescribed physical therapy, steroids,
anti-inflammatories, and a brace. (Id. at 56-57) He
was referred to several hand surgeons, including Dr. J.
Douglas Patterson ("Dr. Patterson"). (Id.
at 57)

Maloney
was seen by Dr. Patterson on June 29, 2009, with complaints
of right radial wrist pain, worsening since August 2008.
(Id. at 38) Maloney complained of daily pain.
(Id.) A June 2009 MRI of Maloney's right wrist
revealed scaphoid lunate advanced collapse (SLAC) wrist.
(Id. at 39-40) Upon physical examination, Maloney
was in no acute distress, with normal sensibility to light
touch, normal capillary refill and turgor and tight
intrinsics. (Id. at 38) He had a slight decrease of
range of motion on the right side. (Id.) Dr.
Patterson administered a steroid injection, and recommended
splinting, therapy, and follow-up in one month.
(Id.) In January 2013, Maloney presented to Dr. Ting
with complaints of right wrist pain and right shoulder pain,
with shoulder pain as the chief complaint (Id. at
61)

Right
Shoulder. Maloney has a history of right shoulder
pain. (D.I. 9-7 at 67-69; D.I. 9-8 at 36-40, 44-45) In April
2013, he underwent right shoulder arthroscopy, limited
debridement of SLAP[3] lesion, and open rotator cuff
repair. (D.I. 9-8 at 48-51) In June 2013, during post-surgery
office visits, Maloney reported that his status was
improving, and his orthopedic surgeon, Dr. Charles Hummer,
III ("Dr. Hummer") made note of acceptable
post-operative ranges of motion. (D.I. 9-9 at 17-18) In July
2013, Dr. Hummer noted that Maloney's range of motion was
acceptable, and that Maloney continued to show slow
improvement. (Id. at 15) Dr. Hummer agreed with
Maloney's request for a respite from formal physical
therapy. (Id.)

A
January 2014 EMG of Maloney's right upper extremity was
essentially normal, and physical examination revealed intact
sensation in Maloney's hand with a grip strength of four
out of five. (D.I. 9-9 at 23) Maloney complained of numbness
in the right upper extremity (greater in the right arm) and
right arm weakness. (Id.) When Maloney was seen on
March 17, 2014, he complained of moderate pain, which was
constant and worsening. (Id. at 1) Conservative
treatment options were discussed with Maloney, and he was
advised that the next surgical step would be a total shoulder
replacement. (Id.) As of November 24, 2014, Maloney
had right shoulder active painful range of motion with
limiting factors of pain. (D.I. 9-12 at 5) As of March 17,
2015, Maloney continued with conservative treatment, received
cortisone injections to the right shoulder, stated that his
symptoms were moderate, and continued to have active painful
range of motion. (Id. at 16-17)

Left
Shoulder. In September 2011, Maloney presented to
Dr. Ting with tightness and left shoulder pain, but denied
arm weakness, tingling, or radiation into the arm.
(Id. at 58) Maloney was prescribed anti-inflammatory
medication for one month and physical therapy. (Id.
at 60) In January 2013, Maloney reported that the left
shoulder had improved on its own. (Id. at 61) In
August 2013, Maloney complained of left arm pain and
numbness. (D.I. 9-9 at 39) An MRI of the left shoulder was
ordered and it revealed a near full thickness to full
thickness tear of a rotator cuff tendon and mild
osteoarthritis. (Id. at 39, 51) A November 2013 EMG
evaluation of the left upper extremity was essentially
normal, although it did reveal evidence of left ulnar
entrapment neuropathy at the elbow consistent with cubital
tunnel syndrome of chronic duration. (Id. at 44-47)

In
December 2013, Maloney was seen at Premier Orthopedics and
described his left arm pain as moderate to severe, occasional
and fluctuating without radiation, and further reported that
he was not in that much pain and declined the offered
cortisone injection. (Id. at 8) Medical notes
indicate that upon review of the images, it was not believed
that Maloney had a full thickness tear, and clinically he had
tenderness over the biceps tendon and AC joint, which are
signs of impingement. (Id.) Maloney had satisfactory
left shoulder range of motion and strength. (Id.) As
of November 24, 2014, Maloney had normal, active pain-free
range of motion of the left shoulder. (D.I. 9-12 at 5) As of
March 17, 2015, Maloney continued with conservative
treatment, received cortisone injections to the left
shoulder, stated that his symptoms were moderate, and
continued with normal active pain-free range of motion in the
left shoulder. (Id. at 16-17)

Back.
Maloney has a history of back pain. In June 2009, Maloney
presented for treatment, reporting neck pain and cervical
strain symptoms. (D.I. 9-7 at 56) Maloney complained of
headache and cervical neck pain in August 2013, and a
cervical spine MRI taken on August 23, 2013 revealed
degenerative changes throughout the cervical region,
superimposed on congenital narrowing of the bony spinal
canal. (D.I. 9-9 at 39-41; D.I. 9-10 at 24-31)

A
November 19, 2014 MRI revealed no significant change of the
moderate spinal canal and neural foraminal stenoses,
essentially stable moderate degenerative discogenic disease
with disc osteophyte complexes, and arthrosis of the facet
and uncovertebral joints from C3 to C7 levels, except for
mild increase in the size of moderate central, left lateral
disc protrusion at ¶ 5-C6, causing moderate to severe
spinal canal and neural foraminal stenoses with mild
compression of the spinal cord without intramedullary signal.
(D.I. 9-10 at 24-31)

A
January 2014 EMG of the right upper extremity was essentially
normal with no evidence of right cervical radiculopathy or
myopathy. (D.I. 9-9 at 42) As of January 3, 2014, Maloney
denied neck pain. (Id. at 42) A November 2014
cervical spine MRI revealed essentially stable moderate
degenerative disc disease. (D.I. 9-10 at 28; D.I. 9-12 at 21)
On March 30, 2015, Maloney underwent a left C3-C7 facet joint
nerve ablation. (D.I. 9-12 at 23-26)

2014
Automobile Accident. Maloney was involved in a motor
vehicle accident on June 18, 2014. Maloney he did not present
to the hospital after the accident even though he had pain.
(D.I. 9-10 at 16) On June 27, 2014, Maloney presented to his
primary care provider with complaints of pain in the side
base of his head and lower back, was diagnosed with acute
cervical and lumbar strain, and prescribed medication. (D.I.
9-9 at 31; D.I. 9-10 at 16) On July 23, 2014, Maloney sought
chiropractic care for neck pain, associated headaches, and
left shoulder pain. (D.I. 9-10 at 16) He provided a history
of neck and shoulder pain mosdy on the right, and reported
that he had been asymptomatic at die time of the June 2014
accident. (Id.) Maloney described immediate moderate
to severe neck pain and stiffness, progressively worsening;
gradual onset of headaches in the temple region,
progressively worsening, moderate to severe; and left
shoulder pain as a gradual onset, progressively worsening,
sharp and aching. (Id. at 16-17) The chiropractic
treatment did not include the right shoulder. (Id.
at 2-20) Chiropractor Dr. John J. Mahoney, II, DC ("Dr.
Mahoney") reported that Maloney improved with each visit
and responded well to conservative treatment. (D.I. 9-10 at
2, 5, 10, 11)

On
November 24, 2014, Dr. Hummer, Plaintiffs treating
orthopedist, completed a medical source statement of ability
to do work-related activities (physical) and assessed that,
due to rotator cuff tendonitis and shoulder osteoarthritis,
Maloney could lift and carry less than 10 pounds
occasionally; stand and/or walk for one hour; could never
push and/or pull with his upper extremities; and could
occasionally push and/or pull with his lower extremities.
(D.I. 9-10 at 32-33) As to postural limitations, Dr. Hummer
opined that Maloney could occasionally climb stairs, bend,
stoop, and balance, rarely kneel and crouch; and never climb
ramps, ladders, ropes, and scaffolds. (Id.). As to
manipulative limitations, Dr. Hummer opined that Maloney
could occasionally feel, rarely handle and finger, and never
reach in all directions (including overhead), and
environmentally should avoid temperature extremes,
humidity/wetness, and hazards. (Id.) Dr.
Hummer's assessment was supported by a positive
Hawkin's test - bilateral, bilateral elevated shoulders
in scapular plane of approximately 100 degrees and positive
impinging signs, decreased shoulder strength, and active
painful range of motion with limiting factors of pain.
(Id. at 33)

C.
Administrative Hearings

An
administrative hearing took place on December 8, 2014, before
the ALJ, with testimony from Maloney, who was represented by
counsel, and vocational expert Christina Cody
("VE"). (D.L 9-2 at 36-62)

1.
Maloney's Testimony

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Maloney
was 55 at the time of the hearing. (Id. at 42) He
has a high school education and one year of college.
(Id.) Maloney testified that he last worked in June
2009 as an asset control supervisor at Cablenet Services
until he was laid off due to downsizing. (Id. at
42-43, 45) Maloney collected unemployment until December 2010
and during this time looked for work of a simpler nature than
what he had performed. (Id. at 43) Maloney testified
that he ...

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